Export controlsGeneral controls
What general controls are imposed on exports?
As a general rule, exports are not subject to taxation. In order to be able to export, a company must be enrolled with the RFB. Such enrolment, known as RADAR, provides access to the integrated foreign trade system (SISCOMEX), through which all Brazilian foreign trade transactions are processed.
A commercial invoice should be issued by the Brazilian exporter and it must contain, at least:
- name and address of the exporter;
- full name and address of the importer, buyer or predetermined order;
- characteristics of the goods;
- numbering and number of reference to the different volumes;
- quantity and type;
- gross weight;
- net weight;
- country of origin;
- country of acquisition;
- country of departure;
- total price and price per unit of each type of goods and the value and nature of any given discounts;
- transportation cost;
- conditions and currency of payment; and
- condition of sale.
The packing list is essential for customs clearance for export. Normally, it contains information about the goods, such as net weight, gross weight, the packaging setting, value per unit, volume and specific contents. However, the exporter should contact the importer so as to check the requirements of the importing country.
The Export Registry (RE), filed by the exporter through SISCOMEX, is the set of commercial, financial, foreign exchange and tax information that characterises an export transaction and defines its treatment.
Before submitting the RE to SISCOMEX, the exporter must check if the goods to be exported require prior approval, since several authorities may be competent to examine and approve the export of goods, depending on their tariff code. See question 22 for more details.
The exporter (most commonly through its customs broker) registers the RE directly with SISCOMEX, indicating the tariff code of the exported goods. A tax invoice or bill of sale must also be issued to accompany the goods throughout the operation, from its exit from the Brazilian exporter’s facility to the actual exportation and customs clearance.
The transporter hired by the parties must then issue a bill of lading or airway bill, a document that will specify the type, quantity and destination of the goods and attest to their shipment to the place of destination (indicated in the commercial invoice).
The RE and the other export documents must be prepared before the registration of the export declaration (DE) and the respective shipping of the goods. The DE formally initiates the exportation customs clearance to be processed at SISCOMEX. Every RE must be registered with a respective DE, although a DE may contain more than one RE. The DE must indicate the number of the registered RE; the identification of the facilities of the exporter involved in the exportation process; the number of the bill of sale; quantity, volume, net and gross weight of the exports; the total value of the operation; and the route negotiated with the foreign importer, as well as other information.
With the registration of the DE at SISCOMEX and the presentation of the export documents (invoice, packing list etc) to the RFB, the exportation customs clearance is processed. It is not uncommon for RFB to request further information before approving the transaction.
Brazil has a set of export controls based on the use and classification of goods. Such controls must be reviewed before any operation so as to obtain the necessary authorisation. In particular, products considered as ‘sensitive goods’ are subject to stricter controls.
The list of products subject to prior consent in exports and the consenting authorities is available at www.mdic.gov.br/index.php/comercio-exterior/exportacao/tratamento-administrativo-de-exportacao.Government authorities
Which authorities handle the controls?
The bodies and agencies are listed below, based on their area of expertise related to the controlled goods:
- the Brazilian Electricity Regulatory Agency: www.aneel.gov.br;
- the National Petroleum Agency: www.anp.gov.br;
- the National Sanitary Surveillance Agency: portal.anvisa.gov.br;
- the National Nuclear Energy Commission: www.cnen.gov.br;
- army command: www.eb.mil.br;
- the SECEX’s Subsecretariat of Operations for Foreign Trade: www.mdic.gov.br/index.php/comercio-exterior/despachos-de-comercio-exterior;
- the National Department of Mineral Production: www.dnpm.gov.br;
- the Federal Police: www.dpf.gov.br;
- the Brazilian Institute of Environment and Renewable Natural Resources: www.ibama.gov.br;
- the Ministry of Science and Technology: www.mctic.gov.br; and
- the Ministry of Defence: www.defesa.gov.br.
A particular case is the exportation of sensitive goods. The Interministerial Commission on Controlling Exports of Sensitive Goods (composed of representatives from the MRE, the Ministry of Defence, the Ministry of Economy, and the Ministry of Science and Technology) was established with the responsibility for drafting regulations implementing Law 9112/95 and applying penalties for non-compliance with and violation of export controls.Special controls
Are separate controls imposed on specific products? Is a licence required to export such products? Give details.
The list of products subject to special controls and to export duty is set out in Annex XVII of SECEX Ordinance No. 23 of 14 July 2011, available at http://portal.siscomex.gov.br/legislacao/biblioteca-de-arquivos/secex/portaria-no-23-de-14-de-julho-de-2011.
Special attention should be paid to the regulation of the export of goods and services with potential military applications and, consequently, to the export of goods or related services with potential application in the development of weapons of mass destruction, whether nuclear, chemical or biological, and their delivery vehicles, such as missiles.
Brazilian export controls comprise the following:
- sensitive goods: goods relevant for the production of weapons, dual-use goods and goods used in the nuclear, chemical or biological areas;
- dual-use goods: products that can be used for purposes of war, even if they have been developed for civil applications; and
- services related to sensitive goods: services related to the supply of information or technology for the development of sensitive goods.
These sensitive goods and services are directly linked and classified as to their nature in four major areas: nuclear, chemical, biological and projectile, according to the specific treatment internationally provided.
Therefore, producers must receive authorisation prior to starting preliminary negotiations on exports, and they must comply with legal requirements, including when participating in international bids and international exhibits.
The exportation of sensitive goods and services related to sensitive goods is subject to prior approval by the competent authorities, as listed in question 22, which includes the presentation of documents evidencing their final use, such as the end use certificate.
The administrative procedure for the approval of export authorisation is confidential. The competent authority in charge of approving such authorisation depends on the product in question.
The Brazilian authorities adopt political and strategic considerations in taking the final decision on exports. Presentation of contracts related to the export operation and other related documents may be required. Such export authorisation is normally valid for two years.
After receiving the proper authorisation, the company must follow general exportation procedures. Thus, copies of contracts and other documents may be required to approve the RE, and, consequently, the exportation.Supply chain security
Has your jurisdiction implemented the WCO’s SAFE Framework of Standards? Does it have an AEO programme or similar?
According to the WCO, Brazil has expressed its intention to implement the WCO Framework of Standards to Secure and Facilitate Global Trade. Furthermore, the RFB fully implemented the AEO programme in 2017, which is regulated by RFB Normative Instruction 1598/2015. Eligible companies may request AEO status through a process of recognition before the RFB.Applicable countries
Where is information on countries subject to export controls listed?
See question 29.Named persons and institutions
Does your jurisdiction have a scheme restricting or banning exports to named persons and institutions abroad? Give details.
Brazil does not have a scheme imposing controls for exports to named persons and institutions.Penalties
What are the possible penalties for violation of export controls?
The non-fulfilment of export controls by exporters may trigger several penalties depending on the facts under scrutiny. The possible penalties can be summarised as follows:
- fines that vary according to the value of the transaction;
- forfeiture of the goods;
- suspension of the right to export; and
- prohibition to perform foreign trade transactions.
As a general rule, responsibility for violation does not depend on intent or on the nature and extent of the effects of the violation. Depending on the nature of the violation, it may also trigger criminal liabilities for the employees of the companies or individuals liable for the non-compliance.